Author Archives: Viva Hammer

Viva Hammer

About Viva Hammer

Viva Hammer is a lawyer in Washington, D.C. She is finishing a book on Jewish family size.

Take Back the Night (and the Day)

Rushing into a conference midway through a speech, I scanned the room for a seat then stopped, startled. Had I entered the Gentlemen’s Gallery of an Orthodox synagogue? But this wasn’t a synagogue – it was a colloquium on derivatives at an Ivy League university! Why was I the lone woman?

I sat down. My mind wandered from derivatives back to another era. It was my first year at Sydney University in Australia and upon entering my maiden Economics tutorial I was confronted with a boys’ football huddle in formation. Prying apart the interlaced arms to make a place for myself, I asked the female tutor, “Where are our money-minded sisters?”

“You’ll get used to it,” the tutor comforted me. But she was wrong. I entered university as women were flooding the disciplines and quickly taking up half the medical and law schools and I usually had plenty of female company in class. Those football physiques provided no advantage in competing for academic awards, which in my year were swept up by women.

Today, responsibility for the tax policy of the United States of America rests with my team. It is the highest honor to be invited to join and log the grueling hours expected of us. Work has a sacred quality: the more you do, the holier you are. Leaving before 7pm is like sneaking out of synagogue midway through the sermon. Extracurriculars such as family or aiding the poor are commendable in small doses; but the core of an American’s identity and the bulk of her or his time must be devoted to paid labor.

kids and computer

Photo copyright Lydia Polimeni

Kim and I are the only women on the team with young children. Whenever we catch a moment to chat, Kim dwells on how deficient she feels. “I only come in three days a week, and I just can’t give it my all,” she moans. “If I’m battling the mess at home, I’m thinking about the pile on my desk; and when I sit behind the pile, I’m imagining the volcano smoldering at home.” She laments that she cannot throw herself into the job with enough gusto to command respect from our colleagues.

Prepping for Passover Amid Grief and Taxes

It is the day before Passover and everyone has a
but me.

My mother’s mother collapsed on seder night, ten days before her young grandson succumbed to cancer. “I don’t want to see my grandson die,” she told a relative. The 
 of grandmother and grandson tumbled one into the other. My brother’s wife died the first day of Passover, her son’s 13th birthday. The bar mitzvah was held in the shiva house on the Shabbat after Passover. My father’s mother lived almost a hundred years, surviving every Jewish calamity of the twentieth century. The night she died, my father was with us in America. Although he usually sat with her day and night, he did not perform the final duty as son; missing the funeral and sitting shiva alone, ten thousand miles away.

Where am I in this house of mourners the day of the seder? I am locked in a room next to the kitchen attending to the tax law. A tax regulation project is barreling through the Treasury Department, and I am the only one who can advise on the financial provisions. And woe is me if I do not help draft it, because then I’m going to have to interpret what they produce left to their own devices.

Fortunately, I do not have to come to the office. They have arranged a conference call so I can hear the discussions and make suggestions from afar. And when they break, I can skip into the kitchen and issue instructions there.

This is not the way I like it. Erev Passover, the day before the seder, is the liminal moment between the weeks of scrubbing and worrying, and the redemption of seder night. It is the fleeting transition when I survey the perfectly antiseptic aluminum foil spaceship I have built, and then sully it with preparations for the evening.

I prefer not to work on Erev Passover, but this time I don’t have a choice. I know the family will take care of everything, leaving only the romaine lettuce for me to check: I earned my insect-checking PhD in a religious kibbutz kitchen and delegate it to no one.

Megillah on the Run

Purim for Jews is a public riot, but in our family we celebrate Purim quietly.  My brother Daniel can’t hear and our parents bought him a beautiful megillah so he could read it to himself. I volunteer to listen to his perfect tuneless reading, thrilled to skip the chaos in shul.

I try to stay home from work on Purim, but one year I was the lead lawyer in a litigation, and I had to be at our Manhattan offices by 9:00am on Purim morning.  We brainstormed and decided my brother could read the megillah on the road between our Brooklyn home and my Manhattan office.

I dressed for work, davened, and watched for Daniel to come from shul. He arrived, we jumped into a black limousine, and Daniel unfurled the scroll to begin the story of Esther.

Photo by Lydia Polimeni

Photo by Lydia Polimeni

I get dizzy in cars, but not that morning. Holding the megillah in my hands, I thought only of black ink on white parchment. We meandered through the narrow streets of Sheepshead Bay through Ahasuerus’s party, and as he called for his wife Vashti to dance before him, we spun into Ocean Parkway, jugular of Flatbush, Babylon of the Diaspora. The road was clear, and we sailed through the execution of Vashti, the search for her successor, and Esther’s coronation. At a red light, Mordecai’s denunciation of the murderous stewards was recorded in the king’s archives.

Ocean Parkway merged with the Belt Parkway when Haman appeared, grinding his teeth over Mordecai’s refusal to bow to him. Traffic is always heavy there because many roads join, and perennial construction puts several lanes out of use. We were grateful for the time. Haman cooked up his evil plot, chose the day to annihilate the Jews, and made his case to the king. We moved at a snail’s pace, Mordecai tore his clothes, and Esther ordered her people to fast three days.

Photo by Lydia Polimeni

Photo by Lydia Polimeni

“Ich bin ein JOFA-nik!”

If I ever had a rabbi, Ruth Calderon would be her. I only ever saw Calderon once, on Youtube, as she delivered her maiden speech to the Knesset. She knows Talmud, she’s got the right values, and she’s a mesmerizing sermonizer. The perfect rabbi sans rabbinic narcissism.

I was booked into the JOFA conference anyway because I was speaking on a panel, but when I heard Ruth was coming I resolved not to miss the plenary (my kids – bless them – delayed me at the last conference). My co-panelists queried why I belonged at JOFA. I don’t go to an Orthodox shul, my closest friends and family have exited observance, and I’m sometimes gabbai of my trad-egal minyan, Segulah.

My co-panelists were making me defend my attendance (as if anyone should need a defense for being a JOFA-nik!), and I responded: I am a gabbai at Segulah in a sheitel, I am the first woman to testify before Congress in that wig, I eat only apples and (bad) chocolate out of the house, and I don’t accept honors at the minyan at which I call others up to do so. You see, a (male) rabbi gave me an anti-partnership-minyan psak and I keep to it.

As a feminist spiritual seeker, JOFA seemed a place I might feel a bit at home.

Well, it was more than a bit. For Ruth Calderon, I stood twice – when she came up to the podium and when she went down. Her words were breathtaking and she has lost none of her modesty with all the adulation.

My mind spun with Maharat Rachel Kohl Finegold’s description of the Shabbat babysitter who comes to watch her brood while she and her spouse both daven with the community. I thought back a generation to when I was both breadwinner and rebbetzin. I stayed home on Shabbat nursing my babies because there was no eruv and the babysitter was hired to cover for my actual job.

As a result of the JOFA Conference, I now attend the only minhah minyan I know of in DC, at the Agudah no less, because of Leah Sarna’s speech at the opening plenary.

The vibe at the JOFA Conference was palpable, full of young people and their mothers and grandmothers. The young ones: we raised them but they raise us higher. They didn’t let us get away with last season’s false platitudes. They’re not out of the closet: they were never in it.

Can A Woman Initiate Jewish Divorce Proceedings?

The biblical text that is the basis for the laws of Jewish divorce provides that a marriage is dissolved where the husband “writes a bill of divorcement, hands it to [the wife], and sends her away from his house” (Deuteronomy 24:1). 

It is clear from this passage that a divorce is accomplished through specific acts of the husband. Neither wife nor beit din (Jewish court) is mentioned as a possible initiator of the divorce process. The rabbis in the Talmud also mandated that the husband’s act must be done “with his full consent” (Yevamot 112b).

The Mishnah [an early rabbinic legal code] does provide, however, that a wife was permitted, under certain circumstances, to request that a Jewish court compel the husband to perform the acts required for a divorce. These circumstances include: where the husband has physical defects that are deemed unendurable; where the husband fails to perform his marital duties; and, according to some, where the wife says “he is repulsive to me,” or where the husband beats his wife.

A Legal Fiction Gives Some Power to Women

But the rule that the Jewish courts can, under certain circumstances, compel the husband to participate in the divorce procedure seems to contradict the rule that a husband must be acting of his own free will when divorcing his wife. How can a man who is compelled to act be considered to be acting “with his full consent”?

In order to answer this question, the rabbis created a legal fiction: A man who agrees to divorce his wife because of the pressure exerted on him to obey an order of a Jewish court is considered to be acting of his own free will. This principle enabled a duly constituted beit din to employ any means it saw fit, including corporal punishment, to ensure the husband formally uttered the necessary phrases and did the acts required of him to constitute participation in the get (Jewish divorce) procedure.

Various rationales have been given for such a formalistic view of “consent.” Maimonides [a medieval codifier of Jewish law], for example, suggests that the husband’s true intent is to follow the law and to give the get as the authorities have ordered him. He is led astray by his evil side, and the means that the authorities use to force his formal consent merely repress his evil impulse, thereby revealing his true wishes and allowing him to act according to his free will (Laws of Divorce, 2:20). Nevertheless, if the measures employed by the beit din were not effective in securing the husband’s participation in the get process, the court itself could do nothing: it is not in its power to change the parties’ marital status. The basic principle remains that the divorce is effectuated through the acts of the parties only.

Contemporary Activism to Save Agunot

The Jewish tradition gives only men the power to grant a divorce. When the husband refuses to give his wife a get, or Jewish bill of divorce, she is unable to remarry. Solutions for these agunot, or deserted women, range from the Reform movement, which does not require a Jewish divorce; to the Reconstructionist movement, whose beit dins (courts) permit a woman to remarry even if her husband does not grant a get; to the Conservative and Orthodox movements, who are instituting prenuptial agreements that use financial incentives to encourage a husband to give a get of his own free will when the marriage is over.

A Demonstration in Borough Park

There was already a knot of people huddled at the demonstration on the corner of 15th Avenue and 46th Street in Borough Park, Brooklyn, by the time we arrived. It was sunny, 20 degrees below zero. broken chains

The crowd grew quickly, and we moved out from 15th Avenue to the courtyard of a dirty grey apartment building. A woman out front took the megaphone and began her admonishment, “Avraham Zvi Silverstein is in contempt of Jewish court. He refuses to give his wife a get (bill of divorce). He is an abomination amongst the people of Israel. The beit din (Jewish court) has asked us to do everything we can to help this woman. He is a shame to the whole community!”

The demonstrators trudged around the courtyard under this man’s apartment, chanting “Avraham Zvi Silverstein, give your wife a get!” “Free Esther Silverstein!” Suddenly, a window in the target apartment shot up, a male head appeared, snapped a picture, and disappeared. It was the only time we raised a response from the object of this exercise.

The megaphone blared again, pointing its nose right into the window of the offending apartment, “We demand a get for Esther and all the agunot like her! We want the beit dins to help women to get their gets, to examine the system that imprisons so many women in bad marriages! Set the agunot free!”

Then Esther came to the phone, a young woman with a beret over her wig, and very plain: “I just want to ask Avraham Zvi to let me go, I want to lead a normal life…” she started to cry and the demonstrators supported her.

Prenuptial Agreements: A Good Solution to a Difficult Problem

This article explains marriage protection agreements as well as potential halakhic problems that may invalidate them. A subsequent article describes three such agreements that accord with Jewish law. Reprinted with permission from the author from Darshan, a publication of Drisha Institute.

An escalating problem in the Jewish community is the refusal of men and women to cooperate in securing a religious divorce, or get. Although a civil divorce can be obtained by judicial decree, whether or not both the husband and wife agree to the dissolution of the marriage, a get requires the free will of both parties. As a result, the get often becomes a weapon in the hands of an individual who wants to manipulate the divorce settlement in his or her favor or who seeks to act out feelings of bitterness against his or her spouse.

prenuptial agreementThe use of the get as a weapon was hardly intended by the Torah and could indeed be avoided in a system of religious legal autonomy. In such a system, any individual who failed to comply with an order of a rabbinic court, or beit din, could be ostracized from the Jewish community. Today, however, the beit din’s powers are rarely invoked, and the beit din’s ability to influence a person’s behavior is minimal.

The result is a growing number of couples whose marriages have ended for all practical purposes, but who do not obtain a get because of the recalcitrance of one of the parties to the marriage. This situation is known as igun, and it has potentially devastating consequences for Jewish life.

Igun threatens the sanctity of family and marriage, the cornerstones of Judaism, in a number of ways. Foremost is the pain and suffering of those who are divorced civilly but not halakhically (halakhah means Jewish law). Unable to remarry, they are prisoners of a failed marriage and hostages of an unyielding spouse.

Additionally, there is the real danger that an individual in such circumstances will remarry anyway, despite the strict halakhic prohibition against doing so. This is particularly a problem for the woman, who is biblically forbidden to marry more than one man. If she is not halakhically divorced from her first husband, her second marriage is considered adulterous. Any child born of this second union will be considered a mamzer [child of an adulterous woman], forbidden to marry anyone but another mamzer or a convert. This explains why the vast majority of igun cases involve recalcitrant husbands rather than recalcitrant wives. Because men are biblically–though not rabbinically–permitted to marry more than one wife, men with recalcitrant wives are often able to find alternative halakhic solutions.

Three Prenuptial Agreements That Just Might Work

Reprinted with permission from the author from Darshan, a publication of Drisha Institute.

A number of marriage protection agreements have been proposed, and three seem to overcome the halakhic problems of kinyan devarim [an agreement with no substance], asmakhta [a penalty agreement], and ones mamon [financial compulsion] described in the previous article

Binding Arbitration Agreement

The most basic of these is a binding arbitration agreement in which husband and wife agree to adjudicate get [bill of divorce]-related issues in a named beit din [rabbinic court]. If either party fails to appear before the beit din, he or she is held in contempt of court. Rabbi J. David Bleich published such an agreement in the Journal of Halacha and Contemporary Society, and Rabbi Moshe Feinstein [one of the most respected and influential 20th-century Orthodox thinkers] found no halakhic problem with this type of agreement.

A variation of this agreement includes a clause making the recalcitrant party liable for all costs, including attorney’s fees reasonably incurred by the aggrieved party in order to secure the other’s appearance at the beit din. In The Rabbinate as Calling and Vocation, Rabbi Haskel Lookstein writes that a document based on this concept was approved by Rabbi Joseph B. Soloveitchik [like Feinstein, a major figure in 20th-century Orthodox Judaism]. This addition is based on Shulhan Arukh Hoshen Mishpat 14:5 (see also Pithhei Teshuva, Hoshen Mishpat 14:12).

Signing this kind of agreement also serves to strengthen the system of Jewish courts both because the parties can be forced to come before a beit din in a situation when halakhah would require them to do so anyway and because the courts will enforce the ruling of the beit din selected by the parties.

Although a binding arbitration agreement has proved helpful in some cases, it fails to pressure the recalcitrant party into actually complying with the instructions of the beit din. Binding arbitration agreements are best used in combination with other types of prenuptial agreements.